Exhibit 10.1


 


AMENDMENT
NO. 3


TO
THE


AMENDED
AND RESTATED


EMPLOYMENT
AGREEMENT


 


This Amendment No. 3
(this “Amendment”) to the Amended
and Restated Employment Agreement is made as of December 15, 2009 by and
among FGX International Inc., a Delaware corporation (the “Company”), Alec Taylor, a resident of the
State of Rhode Island (the “Executive”)
and FGX International Holdings Limited, a British Virgin Islands corporation (“FGX Holdings”).


 


WHEREAS, the Company, the
Executive and FGX Holdings are parties to a certain amended and restated
Employment Agreement dated as of December 19, 2006, as amended as of December 5,
2008 and November 6, 2009 (the “Agreement”);


 


WHEREAS, Essilor
International, a French Société anonyme (“Parent”),
1234 Acquisition Sub Inc., a Delaware corporation and an indirect wholly-owned
subsidiary of Parent (“Merger Sub”),
and FGX Holdings propose to enter into a merger agreement (that certain
Agreement and Plan of Merger among Parent, Merger Sub and FGX Holdings, dated
as of December 15, 2009, the “Merger Agreement”)
that will (subject to the satisfaction of the terms and conditions of the
Merger Agreement) result in FGX Holdings becoming wholly-owned by Parent upon
the Closing (as defined in the Merger Agreement, the “Closing”)
(the “Merger”);


 


WHEREAS, following the
Closing, the Company desires to continue the employment of the Executive on the
terms and conditions stated herein;


 


WHEREAS, pursuant to and
in accordance with Section 20 of the Agreement, the Company, the Executive
and FGX Holdings desire to amend the Agreement.


 


NOW, THEREFORE, in
consideration of the foregoing promises and agreements contained herein, and
for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Company, the Executive and FGX Holdings agree as
follows:


 


1.                                      This Amendment will become effective upon
its execution by each of the parties; provided, however, that this Amendment
will be null and void ab initio
and of no further force or effect if the Merger Agreement is terminated prior
to the Closing or if, for any reason, the Closing does not occur.  Capitalized terms not defined herein will
have the meanings ascribed to such terms in the Agreement.


 


2.                                      Section 3 of the Agreement is
amended in its entirety to read as follows:


 


“3.                                 Duties and
Responsibilities. From and after the Closing and during the
Employment Period, the Executive shall serve as the Chief Executive Officer of
FGX Holdings and each of its subsidiaries. The Executive shall report to the
Corporate Senior Vice President, Strategic Marketing and Innovation (the “Corporate SVP”) of Parent and shall perform
such duties and have such 


 

















 


responsibilities and authority as are consistent with his position and
customary for the chief executive officer of a wholly-owned subsidiary and
delegated to him from time to time by the Corporate SVP. The Executive shall
serve as a member of the Board of Directors of FGX Holdings (the “Board”) during that portion of the
Employment Period during which FGX Holdings remains a privately held
company.  The Executive shall at all
times perform his duties and responsibilities honestly, diligently, in good
faith and to the best of his ability. The Executive shall observe and comply
with all of the rules, regulations, policies and procedures established by the
Company and Parent from time to time and all applicable laws, rules and
regulations imposed by any governmental or regulatory authorities from time to
time. The Executive’s employment by the Company shall be full-time and exclusive
and the Executive agrees that he will devote his full business time, attention
and energies to the performance of his obligations hereunder. Notwithstanding
anything to the contrary set forth herein, the Executive shall be permitted
during the Employment Period to (a) engage in charitable and civic
activities, (b) serve as a member of the board of directors of not more
than two additional for profit corporations and (c) manage his personal
passive investments, provided (i) such personal passive investments are
not in a company or companies which engage in any business which is similar to
or competitive with the business which the Company or any of its affiliates are
engaged in or are then planning to engage in, (ii) such investments
represent the beneficial ownership of less than two percent (2%) of any class
of equity securities of any corporation having a class of equity securities
registered pursuant to the Securities Exchange Act of 1934, as amended, which
are publicly owned and regularly traded on any national securities exchange or
over-the-counter market, and (iii) neither the Executive nor any group of
persons including the Executive in any way, either directly or indirectly,
manages or exercises control of any such corporation, guarantees any of its
financial obligations or otherwise takes part in its business other than
exercising his right as a shareholder, and in the case of (a), (b) and
(c), such activities do not individually or in the aggregate interfere with the
performance of the Executive’s duties and responsibilities under this
Agreement. The Executive shall be based at the Company’s headquarters in
Smithfield, Rhode Island, subject to such travel to other geographic locations
as may be necessary to fulfill his obligations under this Agreement.”


 


3.                                      Section 4(b) of the Agreement
is amended in its entirety to read as follows:


 


“(b)                           Bonus. In addition
to the Base Salary, the Executive shall be eligible to receive an annual cash
bonus on account of services rendered by him during each calendar year during
the Employment Period.  In accordance
with the Merger Agreement, the Board, in consultation with the Executive, shall
establish performance metrics (as such performance metrics may be amended or
modified in the sole discretion of the Board during any calendar year to take
into account any acquisitions, divestitures or non-recurring items or any other
fundamental corporate transactions or changes, the “Performance Metrics”) to quantify the Company’s performance
for any calendar year during the Employment Period.  In 


 


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the event that the Company meets or exceeds the annual Performance
Metrics established by the Board, the Executive shall be entitled to receive,
in addition to the Base Salary, a bonus equal to fifty percent (50%) of the
Base Salary paid to the Executive on account of such calendar year (the “Base Bonus”). In the event that the Company
exceeds the Performance Metrics for any calendar year during the Employment
Period, the Executive shall be entitled to receive, in addition to the Base
Salary and the Base Bonus, an additional bonus to be determined by the Board
(or the Compensation Committee thereof) in an amount of up to fifty percent
(50%) of the Base Salary paid to the Executive on account of such calendar year
(the “Additional Bonus”, and
together with the Base Bonus, the “Bonus”).  Subject to (i) the Executive remaining employed
by the Company on the date the Bonus is determined, or (ii) the Executive
being employed by the Company on the day immediately following the end of the
applicable performance period in the event that the Company terminates the
Executive’s employment without Cause, any Bonus payable to the Executive on
account of any calendar year shall be paid to the Executive on or before the
later of (x) March 15 of the year following the year for which the
Bonus was earned and (y) the date on which the Board has been able to determine
within a reasonable degree of certainty that the Performance Metrics have been
met or exceeded and the amount of the Bonus due Executive.


 


In
addition to the Base Salary and Bonus, the Executive shall (i) participate
in the Company’s long-term incentive program on terms and conditions to be
established by the Board as soon as reasonably practicable following the
Closing, and (ii) be granted options, subject to approval by the board of
directors of Parent (the “Parent Board”),
to purchase shares of Parent on terms and conditions to be established by the
Parent Board as soon as reasonably practicable following the Closing.”


 


4.                                      Section 4(c) of the Agreement
is amended by deleting Section 4(c) in its entirety and redesignating
Section 4(d) as Section 4(c).


 


5.                                      Section 6(e) is amended in its
entirety to read as follows:


 


“(e)                            Mutual Agreement; Without Good Reason. The parties may terminate the Executive’s
employment with the Company hereunder upon their mutual written consent.  The Executive may terminate the Executive’s
employment with the Company at any time without Good Reason on one hundred and
eighty (180) days’ prior written notice to the Company.”


 


6.                                      Clause (i) of the second sentence of
Section 6(f) of the Agreement is amended in its entirety to read as
follows:


 


“(i)                               a material
reduction or material adverse change in the Executive’s authority, duties, job
responsibilities or reporting structure from those in effect on the date
hereof; provided, however, that no Good Reason shall exist solely as a result
of the Company ceasing to be an independent publicly held company and as 


 


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a result of the change in the Executive’s reporting structure as a
result of the Merger;”


 


7.                                      Section 6(f)(v) of the
Agreement is deleted in its entirety.


 


8.                                      Section 7(b)iii) of the Agreement is
amended in its entirety to read as follows:


 


“iii)                             subject to the satisfaction of the
obligations enumerated in the immediately preceding paragraphs (i) and
(ii), the Company shall have no further obligation to the Executive.”


 


9.                                      Section 7(b)iv) of the Agreement is
amended in its entirety to read as follows:


 


“iv)                            All payments by the Company under this Section shall
be net of any tax or other amounts required to be withheld by the Company under
Section 4(c) of this Agreement.”


 


10.                                Section 7(b)v) and Section 7(b)vi)
of the Agreement are deleted in their entirety.


 


11.                                Section 8(a) of the Agreement
is amended in its entirety to read as follows:


 


“(a)                            Subject to Section 8(d), if the
Executive’s employment is terminated either by the Company without Cause, by
the Executive for Good Reason or because of the Executive’s death or
Disability, in any case, within twenty-four (24) months after a Change in
Control (as defined in Section 8(c)), the Executive shall be entitled to
receive a supplemental bonus payment (the “Change
in Control Payment”) from the Company equal to two (2) times
the sum of (x) the Executive’s then current Base Salary plus (y) the
amount of the Base Bonus (as defined in Section 4(b) above) for the
year in which the Executive’s employment is terminated (determined without
regard to whether any Performance Metrics established by the Board pursuant to Section 4(b) above
are or were satisfied).  The Change in
Control Payment shall be paid to the Executive on the sixtieth (60th) day following the earlier of the Executive’s separation
from service (as defined in Section 409A) or the date of the Executive’s
death.  The Executive shall also be
entitled to continuation of medical, dental and vision benefits under Section 5(a) hereof
at the same cost to the Executive as is applicable to active employees of the
Company until the earlier of (x) the two-year anniversary of the date of
the Executive’s termination of employment and (y) the date on which the
Executive is provided comparable benefits from any other source (the “Continuation Coverage”); provided, however,
that the Company shall use commercially reasonable efforts to provide such
health insurance benefits through a third party insurer.  For purposes of this Agreement, the amounts
paid or contributed by the Company for Continuation Coverage for the benefit of
the Executive and, as applicable, the Executive’s eligible dependents are
referred to as the “Premium Payments”.  In the event that the Company’s group health
plan is or becomes subject to the nondiscrimination rules of Section 105(h) of
the Code, the Company’s obligation to pay the premiums for Continuation
Coverage will end, and the Executive will become responsible for 


 


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the timely payment
of the full cost of maintaining his elected coverage and the coverage for his
eligible dependents until the end of the applicable Continuation Period.  In such event, the Company will reimburse the
Executive in an amount equal to the Premium Payments that the Company would
otherwise have paid in accordance with Section 5(a) (“Premium Reimbursements”).  The Executive acknowledges that any Premium
Reimbursements will be treated for reporting purposes as taxable income to the
Executive.  The Executive will provide
the Company substantiation in reasonable detail of the premiums the Executive
paid within two calendar months after the premiums are paid.  Premium Reimbursements under this Section 8(a) will
be paid to the Executive in the calendar month following the calendar month in
which substantiation determined by the Company to be adequate has been provided
to the Company.  In no event will
adequately substantiated reimbursements be paid to the Executive later than the
last day of the calendar year following the calendar year in which the premium
expense was incurred.  The Executive will
promptly notify the Company in writing if the Executive becomes eligible for
coverage under another group health plan prior to the two-year anniversary of
the date of the Executive’s termination of employment.”


 


12.                                Section 8(b) of the Agreement
is amended in its entirety to read as follows:


 


“(b)                           (i)                                     Subject to Section 8(d) and
subject to the Executive remaining employed by the Company on the second year
anniversary of the Closing (the “Retention
Payment Date”), the Executive shall be entitled to receive, no later
than five (5) business days following the Retention Payment Date, an
amount in cash equal to the Change in Control Payment (calculated in accordance
with Section 8(a) above) (the “Retention
Payment”).


 


(ii)                                  Notwithstanding
anything to the contrary in this Agreement, (x) in no event shall the
Executive be entitled to receive benefits under both Section 8(a) and
Section 8(b) above and (y) in no event shall the aggregate cash
payment(s) to the Executive under this Section 8 be less than
$1,605,000.


 


(iii)                               Executive
shall be provided the Continuation Coverage with respect to any termination of
his employment with the Company that is effective as of or following the second
year anniversary of a Change in Control.”


 


13.                                Section 8(c) of the Agreement
is amended in its entirety to read as follows:


 


“(c)                            The parties
hereby agree that the Closing will constitute a “Change in Control” for purposes of this Agreement.”


 


14.                                A new Section 8(d) is added to
the Agreement as follows:


 


“(d)                           (i)                                     As a condition precedent to receiving the Retention
Payment or any payment pursuant to Section 8(a), Executive shall execute a
general release reasonably satisfactory to the Company of any and all claims
which Executive or his heirs, executors, agents or assigns might have against
the 


 


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Company, its
subsidiaries, affiliates, successors, assigns and its past, present and future
employees, officers, directors, agents and attorneys, except for claims arising
under this Agreement or any employee benefit plan (other than any employee
benefit plan providing a benefit in the nature of a severance benefit) in which
Executive participates or for any right to indemnification to which Executive
may be entitled as an officer and director of the Company (the “Release”).


 


(ii)                                  In the case of the Release in respect of
the Retention Payment, a valid Release shall be delivered to the Company prior
to the Retention Payment Date; provided that the Company has provided Executive
a form of Release at least forty-five (45) days prior to the Retention Payment
Date.  Subject to the Company’s
compliance with the previous sentence, the Company shall have no obligations
under Section 8(b) if Executive fails to deliver a valid Release to
the Company on or prior to the Retention Payment Date.


 


(iii)                               In the case of the Release in respect of
any payment under Section 8(a), a valid Release shall be delivered to the
Company within sixty (60) days following Executive’s termination of employment;
provided that the Company has provided Executive a form of Release within seven
(7) days following the Executive’s termination of employment.  Subject to the Company’s compliance with the
previous sentence, the Company shall have no obligations under Section 8(a) if
Executive fails to deliver a valid Release to the Company within sixty (60)
days following Executive’s termination of employment.”


 


15.                                Section 19 of the Agreement is
amended in its entirety to read as follows:


 


“19.   
Entire Agreement. This Agreement constitutes the entire understanding of
the parties and supersedes all prior agreements, understandings, arrangements,
promises and commitments, whether written or oral, express or implied, relating
to the subject matter hereof, and all such prior agreements, understandings,
arrangements, promises and commitments are hereby canceled and terminated.”


 


16.                                Section 21 of the Agreement is
amended in its entirety to read as follows:


 


“21.  Survival. Notwithstanding anything to the contrary in
this Agreement, this Agreement will terminate upon payment of the Retention
Payment; provided, however, that the provisions of Section 8(a) (but
only to the extent Section 8(a) relates to the Continuation
Coverage), Section 8(b)(iii), Sections 9 through and including 17, and
Sections 22, 24, 28 and 29 hereof shall survive the termination or expiration
of this Agreement.”


 


17.                                Section 22 of the Agreement is
amended in its entirety to read as follows:


 


“22.    Notices.  Any notice, request or other document
required or permitted to be given under this Agreement shall be in writing and
shall be deemed given (a) upon delivery, if delivered by hand, (b) three
days after the date 


 


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of deposit in the mail, postage prepaid, if mailed by U.S. certified or
registered, mail, or (c) on the next business day, if sent by prepaid
overnight courier service, in each case, addressed as follows:


 


	
  (a)

  	
   

  	
  If to Executive, to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Alec Taylor

  
	
   

  	
   

  	
  [Redacted]

  
	
   

  	
   

  	
  [Redacted]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  With a copy (which shall not constitute notice) to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Alexander B. Buchanan

  
	
   

  	
   

  	
  Waller Lansden Dortch & Davis, LLP

  
	
   

  	
   

  	
  Nashville City Center

  
	
   

  	
   

  	
  511 Union Street, Suite 2700

  
	
   

  	
   

  	
  Nashville, Tennessee 37219-8966

  
	
   

  	
   

  	
  Attn: Alexander B. Buchanan, Esq.

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  If to the Company, to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FGX International Inc.

  
	
   

  	
   

  	
  500 George Washington Highway

  
	
   

  	
   

  	
  Smithfield, Rhode Island 02917

  
	
   

  	
   

  	
  Attention: Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  If to FGX Holdings, to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FGX International Holdings Limited

  
	
   

  	
   

  	
  500 George Washington Highway

  
	
   

  	
   

  	
  Smithfield, Rhode Island 02917

  
	
   

  	
   

  	
  Attention: Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  in each case, with copies (which shall not constitute notice) to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Skadden, Arps, Slate, Meagher & Flom LLP

  
	
   

  	
   

  	
  Four Times Square

  
	
   

  	
   

  	
  New York, New York 10036

  
	
   

  	
   

  	
  Attn: Neil M. Leff, Esq.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Essilor International

  
	
   

  	
   

  	
  147 rue de Paris

  
	
   

  	
   

  	
  94227 Charenton-le-Pont

  
	
   

  	
   

  	
  France

  
	
   

  	
   

  	
  Attn: Carol Xueref

  



 


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  Jones Day

  
	
   

  	
   

  	
  222 East 41st Street

  
	
   

  	
   

  	
  New York, New York 10017

  
	
   

  	
   

  	
  Attn: Manan D.
  Shah, Esq.

  



 


Any party may change the address to which notice
shall be sent by giving notice of such change of address to the other parties
in the manner provided above.”


 


18.                                Section 30 of the Agreement is
deleted in its entirety.


 


19.                                Except as expressly provided herein, no
other modifications or amendments to the Agreement are being made and, with the
exception of the amendment set forth herein, the terms and conditions of the
Agreement are hereby ratified and confirmed.


 


[Signatures Appear on Next Page]


 


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IN WITNESS WHEREOF, the parties have executed this
Amendment as of the date first written above.


 


 


	
   

  	
  FGX INTERNATIONAL INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Anthony Di Paola

  
	
   

  	
  By: Anthony Di Paola

  
	
   

  	
  Title: Executive Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FGX INTERNATIONAL HOLDINGS LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Anthony Di Paola

  
	
   

  	
  By: Anthony Di Paola

  
	
   

  	
  Title: Executive Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Alec Taylor

  
	
   

  	
  Alec Taylor